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Even Trump can't defy rule of law

Over the last few weeks in my Canadian Politics class, I have been talking about the development of the Canadian Constitution and the road to patriation that led to the Constitution Act, 1982 and the Charter of Rights and Freedoms.
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Over the last few weeks in my Canadian Politics class, I have been talking about the development of the Canadian Constitution and the road to patriation that led to the Constitution Act, 1982 and the Charter of Rights and Freedoms. A discussion of the rule of law in essential in any political science class because much of our discipline centres around the extent of the power of the state over individuals and of society in general. In fact, we often say that we are studying the relationship among the state, the society and the individual.

In our system of government, the courts play a guardian role in overseeing that the rule of law guides institutions and the decisions they make that might impact individual or group rights. The rule of law as defined by the Oxford English Dictionary is: "The authority and influence of law in society, esp. when viewed as a constraint on individual and institutional behaviour; (hence) the principle whereby all members of a society (including those in government) are considered equally subject to publicly disclosed legal codes and processes."

In our class discussion, I spend time looking at the Charter of Rights and Freedoms because it specifies how our "guardians" are to think about the relationship among the state, the society and the individual. Section 1 of the Charter reads: "The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society."

This clause says that we have the rights and freedoms that are listed in the Charter but they can be limited by the state if the objective of the limit is reasonable and the limit itself does not go too far beyond the purpose of the law. We would expect that such a limit would be deemed acceptable in a free and democratic society where we believe in the safety and security of society for all people, including minority populations.

The Canadian Supreme Court has worked out a careful test to judge the validity of the state's imposition on rights and freedoms. The justices of the Supreme Court use interpretation and precedent to make a final determination about limitations on rights and freedoms and they are in dialogue with the state and with citizens when evidence is provided on either side of a case. In fact, the justices are also in dialogue (through written judgments) with lower courts where earlier judgments have been made.

I raise all of this background information as a way to point to the considerable power of courts in the process of adjudicating disputes among citizens and governments.

While the United States Constitution is different in substance to the Canadian constitution, the idea of the rule of law and the role of the courts in determining the extent of power of the state is, in principle, the same. And so I would direct readers to the interesting battle that is unfolding in the U.S. regarding Executive Order 13769, "Protecting the Nation From Foreign Terrorist Entry Into the United States," which, among other changes to immigration policies and procedures, bans for 90 days the entry into the United States of individuals from seven countries."

On Feb. 3, a federal district court temporarily suspended the executive order and on Thursday, a federal appeals court agreed that the suspension of the order should remain in place. The ruling reads: "the Government has taken the position that the President's decisions about immigration policy, particularly when motivated by national security concerns, are unreviewable, even if those actions potentially contravene constitutional rights and protections."

The government argued that the court should be "deferential" to the power of the president in cases involving national security. The court's rejection of that argument was essentially based on their assertion that they have a duty to uphold the rule of law. They write: "In short, although courts owe considerable deference to the President's policy determinations with respect to immigration and national security, it is beyond question that the federal judiciary retains the authority to adjudicate constitutional challenges to executive action."

There is no doubt that courts plays a vital role as arbiter of rights and freedoms in a "free and democratic society."